When is it only banter?

As Malky Mackay launches a desperate bid to salvage his career in football amid the on-going row about text messages he sent during his time as Cardiff City manager; and his apology issued within a statement on his behalf by the League Managers Association – claiming that the exchanges occurred during “friendly text message banter” – appears to backfire, Owen John, an employment lawyer with Langstone Business Park-based Darwin Gray talks through the subject of when banter goes too far and becomes discrimination….

1. When does ‘banter’ go too far?

There is no hard and fast rule and it’s a very fine line between (a) ‘banter’ and (b) discriminatory / potentially unlawful comments. However, generally, if the comments are likely to offend someone, especially where they are linked to a ‘protected characteristic’ (defined in the Equality Act 2010 as things like race, sex, age, disability, religion, sexual orientation, gender reassignment) then they have probably crossed the line.

2. What advice can we give to individuals?

Malky’s comments were made ‘during the course’ of his duties (to a work colleague and in relation to work matters) so when corresponding / making comments ‘during the course of employment’, an individual must take responsibility, exercise sound judgment, and, if in doubt err on the side of caution. This is also true of comments made outside of employment but in the public eye (e.g twitter / facebook) as they could potentially harm the employer’s reputation.

So basically, the advice is to pause and think about how comments could be perceived by others, especially when putting comments in writing (eg emails, texts). Remember that emails, for example,are permanent and can always be recovered.

3. What are the risks when banter goes too far?

It could end up in legal proceedings / tribunal claims. So, for example, if employee ‘A’ has made a racist joke and employee ‘B’ feels he/she has been discriminated against as a result of ‘A’s comment, ‘B’ could potentially bring claims for discrimination against both the employer (who has responsibility over ‘A’s actions) and ‘A’. This could result in very costly legal proceedings. Compensation for discrimination claims is completely uncapped in an Employment Tribunal, ie there is no maximum award (unlike with unfair dismissal claims).

4. What can an employer do about individual cases?

An employer can take disciplinary action against individuals and issue disciplinary sanctions (eg first written warning, final written warning, or, if the comments are sufficiently serious and amount to gross misconduct, dismissal). It’s important that an employer doesn’t just ignore things as said employer does not want to be seen to be tolerating / encouraging such comments. Sometimes a quiet word would suffice, but in more serious cases, employers should not be afraid to use disciplinary processes.

Things are slightly different in Malky’s case as he was no longer an employee when his employer found out. However, with current and even former employees, where there is a regulatory / governing body, the employer may feel a duty to report very serious issues to them (eg as Cardiff City FC have reported the matter to the FA, a school may feel the need to report to the General Teaching Council for Wales, or an insurer may feel the need to report to Financial Conduct Authority). The employer must look at bigger picture.

5. How can employers prevent banter going too far in the future?

It is advisable for an employer to have an internal policy on equal opportunities and diversity – setting out what is acceptable and unacceptable conduct. That policy should be communicated clearly to all staff so that they are clear of the conduct / behaviour expected of them. An effective way of communicating a policy is to hold staff training on diversity and equal opportunities (at least once a year). This has two main benefits – it educates staff and will hopefully improve behaviour, and also, if things end up in an Employment Tribunal it will help the employer’s defence if they can show that they held such training with staff (in other words, that the employer ‘did as much as they could’ to eradicate banter that had gone too far.

6.Can an employer monitor an employee’s email / texts?

Yes, but only if the employer has informed the employee that they intend to do so. This can be done via an internal policy (eg communications policy). This policy should set out: (a) why the employer monitors emails / phones, the extent of the monitoring, and the means used; (b) the circumstances in which an employee may or may not use work email / phones for private communications; (c) how the policy is enforced and the penalties an employee can expect to face if he / she breaches the policy; (d) the extent to which information about an employee’s internet / phone access and emails are retained in the system and for how long. Basically, the main thing is that an employer is as open and transparent about the monitoring as possible from the outset. If they are not, there are risks that they could fall foul of several pieces of legislation including the Data Protection Act.

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